Legal News

On 27 October 2016 an order was made by the Upper Tribunal setting aside a previous order to dismiss the applicant’s application for Judicial Review of an Age Assessment. The original order was on the basis that the Applicant was not present or instructing his solicitors to take part in proceedings. The Order setting aside the dismissal was made 10 months after the application was dismissed.

The case concerns a young person who has been assessed as being over 18 by Essex County Council. This is disputed as the client instructs that he is about 14 or 15. In 2015, a Judicial Review application was lodged challenging the assessment of the Local Authority and permission to precede was granted. Unfortunately, the client disappeared on the evening before permission was granted, and was subsequently reported missing to the Police. In his absence Duncan Lewis had to come off the Court record and the case was struck out. In March this year, Duncan Lewis received a message that he had returned to the Gloucester area and wished to pursue his case.

The Local Authority argued that the Upper Tribunal did not have jurisdiction to set aside the dismissal under rule 43 of the Upper Tribunal Rules as the application had not been made within one month of the set aside order. Alternatively it was argued that the proper course of action was to bring fresh proceedings and apply for an extension of time. Both arguments were rejected.

In setting aside the order UTJ Coker noted that the one month time limit in Rule 43(3) was triggered by an order being served upon a party. Neither the Applicant nor his representatives had been served and the application had been made within one month of the Applicant’s solicitors requesting a copy of the Order from the Respondent.

UTJ Coker further stated that requiring the Applicant to issue fresh proceedings would require ‘procedural formality to take precedence over the issues at stake’. It was noted that if permission to extend time were granted, the position would then be as if the Applicant had not disappeared, but with the passing of some significant time. Considerable weight was put on the Applicant’s potential age (15 or 16 rather than 18).

Unfortunately it is not uncommon for vulnerable persons to abscond during lengthy litigation. However, it is clear that it is possible to have proceedings reinstated where an application has been set aside on the basis of lack of participation, where good reason (youth, mental health issues or learning difficulties) can be shown for the disappearance.

Author Siân Pearce is a Consultant Solicitor with Duncan Lewis. She is accredited as a Senior Immigration Caseworker under the Law Society Immigration & Asylum Accreditation Scheme which enables her to advise and assist on immigration publicly funded matters. Siân has significant experience of dealing with a variety of asylum and immigration work, and regularly conducts her own immigration appeals advocacy in the First Tier Tribunal. She specialises in cases concerning particularly vulnerable clients, including victims of human trafficking, unaccompanied asylum seeking children, and persons detained under the Mental Health Act.

Duncan Lewis' Business Immigration team is recognised by Legal 500 2016 as a leading London practice in this field with a "strong track record representing SME clients". The Business Immigration team regularly services clients from a range of different industries including Energy, banking and finance, insurance, IT healthcare, education and security industries.

For assistance on any immigration matter, do not hesitate to call Duncan Lewis' specialist lawyers on 0333 772 0409.